Newspaper link not subject to defamation claim

August 20, 2012 12:00 AM

By Saranac Hale Spencer The Law Intelligener

The U.S. Court of Appeals for the Third Circuit has held that a link on a newspaper website that leads readers to other stories is not "republication" of the earlier material, meaning the link's presence doesn't allow for a new defamation claim.

The decision marks the first time the court has addressed whether or not the traditional single-publication rule and the doctrine of republication apply to material published online under Pennsylvania's defamation statute.

The issue arose during the bankruptcy proceedings for The Philadelphia Inquirer, when attorney and Republican fund-raiser Vahan H. Gureghian filed a defamation claim, citing a column on the paper's website that linked to stories that had originally been published more than a year earlier. The stories investigated his business with area charter schools and the statute of limitations for defamation claims is one year.

In its articles, the Inquirer "cited state records showing that the publicly funded charter school was one of the highest spenders among charter schools on business and administrative costs, and among the lowest on instruction," according to the Inquirer itself.

One legal scholar said the case was significant because it equated Web links with references.

"A link is akin to the release of an additional copy of the same edition of a publication, because it does not alter the substance of the original publication," Judge Thomas L. Ambro wrote on behalf of the three-judge panel, which included Judges Julio M. Fuentes and Thomas Hardiman.

The court held that the single-publication rule could be carried over from print to Internet publications. That rule was intended to quell the potential retriggering of the statute of limitations each time an article was recirculated by declaring that the original publication date -- not the most recent circulation date -- of the material marked the start of the year-long limit, Judge Ambro said.

Judge Ambro leaned on the reasoning of other courts in finding that "there is 'no rational basis upon which to distinguish publication of a book or report through traditional printed media and publication through electronic means,'" quoting from the New York Court of Claims' 2000 opinion in Firth v. State.

That opinion set the standard to which all other courts have looked on the issue, Judge Ambro said.

"We believe that Pennsylvania courts would extend the single-publication rule to publicly accessible material on the Internet based on similar reasoning," he said.

The court next turned to the doctrine of republication, an exception to the single-publication rule that allows for an edited or reissued statement of the defamatory material to reset the statute of limitations. Judge Ambro noted that other courts weighing the issue with regard to the Internet have distinguished between simply linking to untouched material, adding content, making technical changes and adding substantive material.

Because websites are so frequently updated and linked, if each event were considered a republication, the statute of limitations would be rendered meaningless as it would be constantly reset.

"Under traditional principles of republication, a mere reference to an article, regardless how favorable it is as long as it does not restate the defamatory material, does not republish the material," Judge Ambro said.

Anjali Dalal, who studies hyperlinks in the context of the First Amendment at Yale Law School's Information Society Project, saw the court's specific definition of links as references as significant.

"A link is functionally a citation," Ms. Dalal said of the court's view.

Michael Berry, who represents news organizations at Levine Sullivan Koch & Schulz in Philadelphia, sees the opinion as an "endorsement of common sense legal principle," that simply pointing people toward information isn't defamatory.

This decision "ensures that the Internet will continue to be a forum for free and open discussion," he said.